Postdate: 8/ 08/ 2003
Josaia Diani, the mouthpiece of Joji Kotobalavu of the Prime Minister’s Office and Attorney General Qoriniasi Bale, has called on the CCF to leave the resolution of outstanding constitution matters to those who were elected. There is no law against debating the issue. And since Diani and his ghost writers are also unelected people, I am not constrained to reply. Having read the Prime Ministers speech on 23 July justifying why he preferred Mahendra Chaudhry to take the Leader of the Opposition role rather than accept an invitation letter to join the Cabinet, I felt justified in coming to the conclusion that the Prime Minister placed his own narrow personal political interest and that of his Party as more important than obeying the law as declared by the Supreme Court. If I am politically naive and guilty of abstract and idealistic thinking for coming to that conclusion, then I am not in the least ashamed because I am in good company. Because this plea from Diani and Co. is also a protect against the Opinion of five eminent Judges. You could hardly call them naive and abstract thinkers! I agree with the five Judges Opinion that the multiparty government provision under Section 99 of the Constitution is practical and workable, if all Parties implement it to the letter and in the spirit of which these were made. After all, these were made by some of Fiji’s most experienced political leaders of the last thirty years. Were they too idealistic and abstract people? The Prime Minister’s belief that it would be political suicide and imprudent to form a smaller Cabinet in accordance with Section 99 of the Constitution is nonsense.
I do not agree with the simplistic conclusion that the S.V.T and N.F.P lost the 1999 General Election because of Section 99. The reasons are more complex than that. Suffice to say that we in CCF have, since 1999, visited hundreds of Fijian villages and discussed the Constitution with ordinary Fijians. What we found out was that hardly any of them had read the Constitution let alone seen it. In most cases, they told us, CCF was the first organization to honestly explain important parts of the Constitution to them and provided them with educational pamphlets. There were other political reasons given in the Prime Minister’s Speech to the nation for not wanting to form a multiparty government that includes the FLP and these too were unconvincing. First he said that it would “carry the potential for political crisis and political instability”. The patient response of the public in the last two weeks, to the talks that are going on are largely supportive of the idea of a government of national unity in accordance with Section 99, and gives the lie to this belief. Two of our CCF members, Rev. Akuila Yabaki and Ratu Meli Vesikula have been on the Fijian Talk Back Radio programme of Sitiveni Raturala three times since the Supreme Court Judgment, and we have monitored other Radio Interviews of Fijian leaders. The impression we have formed and this can be confirmed by the Radio interviewer is that respondent Fijian listeners largely support the formation of a multiparty government in accordance with the judgment of the Court. Opinion Polls published by the news media since February this year are similar – around 70% support for a multiparty unity government. Prime Minister Qarase’s advisers need to understand that the vast majority of people of all communities want co-operation consensus and unity, not continued division and confrontation.
Another reason given in the Prime Minister’s speech is that he cannot abandon those in his present Coalition who had been loyal to him. This despite the fact that quite a number of them had publicly stated previously that they were willing to relinquish their Ministerial posts if he had asked them to. He also said he could lose his support in Parliament and the Prime Ministership if he was compelled to retire CAMV Ministers. He said this after the CAMV as a Party had publicly pledged its support for him to continue as Prime Minister. He also ignored the fact that he could by following the Supreme Court accommodate the CAMV and the FLUP after FLP has its proportionate Cabinet. The question is why has Mr. Qarase refused to test the professed loyalty of his colleagues? There is no evidence that the SDL or CAMV Party support would break up if Mr. Qarase were to appoint a smaller cabinet. Another reason given for preferring FLP not to be in Cabinet was that “he was not free to make changes to our policies without consulting members of our parties”. Nowhere in his speech had the Prime Minister spelled out precisely which policies of the SDL could not be changed. This assertion is what I would call politically naive because in a democracy on elected Government very often has to modify or even to jettison some of its electoral policies for practical and other reasons on the basis of civil service advice. Not just political parties in a Coalition and powerful interest groups that a Government encounters in office can also compel policy changes and adoption of new policies that a government was not elected for. This has happened in the last two years, with SDL implementing many policies that were not part of SDL Election Manifesto.
In any case, almost all of the critical policy is sues of SDL, such as restructure of the Sugar Industry, land and resources legislations, changes to the Constitution etc will need to be modified if the FLP and the interest groups its represents are to support their passage through Parliament. After all social conflict in the canefields need to be avoided and FLP support is needed there. The uncompromising tone of the Prime Minister’s speech is inconsistent with the work of the Talanoa Dialogue Committee, which has been working towards consensus on areas of policy differences. The Meaning of Section 99 The argument of the SDL Party is based on its interpretation of Section 99 (5) that it prescribes only the entitlement of an eligible Party, not of the Prime Ministers’ SDL Party Extending this interpretation, Prime Minister’s advisers then argue that this entitles the Prime Minister to include other political parties and individuals not entitled to be invited to the Cabinet to be part of a new Coalition which then becomes a new SDL political entity after the Election. This then entitles the Prime Minister to deem the FLP as only entitled to 39% of the Cabinet positions and the new SDL entity to 61%. Such a new political interpretation of the Constitution is not supported by the Judgment of the Supreme Courts and the Courts of Appeal that have addressed the issue of interpreting Section 99. It makes nonsense of the meaning of entitlement under Section 99. Only those political parties with 10% or more of the seats are entitled to be invited and by the Prime Minister in the first instance and shares of the Cabinet positions “in proportion to their numbers in the House”. Those political parties that are not entitled to be invited cannot just join a new “Coalition” formed after the General Election (as has happened in this case) to get into Cabinet through a backdoor so as to diminish the entitlements of those parties with 10% and more of the seats.
The Supreme case of Kubuabola vs. Chaudhry confirmed that there were two parties, apart from the FLP, that were entitled to be invited to Cabinet, the Fijian Association Party (FAP) (which was an FLP Coalition partner during the Election) and the Soqosoqo ni Vakavulewa ni Taukei (SVT). The Supreme Court then did not say that the election Coalition Partner of the FLP, (that is PANU) and the new partner after the Election (the VLV) had stronger entitlement to be invited to Cabinet then the S.V.T. Non entitled parties, especially if they are coalition partners of the Prime Minister’s Party during the Election will be accommodated by the Prime Minister after the entitled major parties have got their proportionate shares. Hence I agree with the calculation of the SDL that in 22 member cabinet SDL is entitled to 10, Labour 9 and 3 extras. The other three extras are shared out proportionately so SDL gets 12 and FLP 10. Similarly in a 36 Members Cabinet, it will be SDL 16, FLP 14, 6 extras, with SDL taking three of the extras. The Cabinet then consists of SDL 19 and FLP 17. This is where the principle of Section 99 (4) is relevant to guide the entitled parties. It says “composition of the Cabinet should, as far as possible, fairly represent the Parties represented in the House of Representatives”. The architects of Section 99 envisaged that entitled parties will be first to enter the Cabinet, and other Parties, especially the Coalition partners of the Prime Minister’s Party, during the Election will be accommodated next so that the Prime Ministers Coalition will comfortably maintain its majority in the Cabinet. Other minor parties CAMW, NLUP and independents not in the Prime Ministers SDL Party can also be accommodated by the Prime Minister, but such appointments will come out of the Prime Minister’s entitlement of 19 Cabinet seats because under Section 99(6) they are deemed to be selections from the Prime Ministers’ own Party. I support my interpretation with reference to Paragraph 143 page 48 of the Judgment of the Supreme Court which I quote: When, as has occurred, there are only two parties which have more than 10% of the membership of the House, the Prime Minister can ensure that the majority party has a majority in the Cabinet. [(ss.99(44), (5) and (6)].
It may also be noted that so long as the Prime Minister’s Party has a majority of the total of parliamentary seats held by that party and all other eligible parties it will have an entitlement to a majority of the positions in the Cabinet. For assuming each eligible party accepts the invitation for representation in the Cabinet its entitlement to representation will be measured by the proportion of the number of parliamentary seats it holds to the total number of parliamentary seats held by the Government or Coalition Party and all eligible parties. On that basis, in the present case, the Prime Minister’s Party has an entitlement to a majority position in the Cabinet. If Mr. Diani calls this “blind legalism” then he is condemning and disagreeing with the Judgment of the Supreme Court. It also means the Prime Minister is either been misguided by wrong advice or his claim to be obeying the law is not honest. That is why most ordinary people in this country still do not believe the Prime Minister is following the letter and spirit of the Constitution and the Supreme Court Judgment.